The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.
When it comes to opinions about the rightful limits on money in politics, the Supreme Court justices seem to live on two different planets. To the more libertarian-oriented justices, such as the late Antonin Scalia, donation limits are a form of unconstitutional censorship that benefits incumbents and gives preferential treatment to the media, which has generally been exempt from limits applying to other corporations. Until Citizens United, for example, a typical for-profit company could not use its resources to advocate for or against candidates for federal office, while the owners of The Atlantic could expend unlimited sums promote or oppose those candidates on the website or in the pages of the magazine.
To justices on the other side of this debate, such as Stephen Breyer, courts should defer to legislative expertise in crafting campaign-finance laws so as to minimize corruption, promote equality, and preserve the public’s confidence in our democracy. Now, with the loss of Justice Scalia and the pending nomination of Merrick Garland to take his place, the direction of the Court’s rulings seems increasingly up for grabs.
In the early 2000s, the pro-regulatory view of campaign finance held sway. The Court upheld many campaign-finance limits, including two key limits in the McCain-Feingold legislation in the 2003 McConnell case. One provision of the law, the “soft-money” rule, stopped political parties from using a loophole to accept six- and seven-figure donations from wealthy individuals, corporations, and labor unions to fund election-related advertising. The other key provision, the “electioneering-communications” rule, limited corporations and labor unions from spending on these ads directly from funds they acquired from selling products or services. At the time, the divide on the Court did not break down along party lines. Republican-appointed Justices Sandra Day O’Connor, David Souter, and John Paul Stevens not only joined in these opinions—they wrote them. Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas dissented, holding that the Constitution’s First Amendment requires that money should be able to flow freely into political activities.
Changes on the Supreme Court, not changes to the language of the Constitution itself, led the Court to reverse direction. The replacement of Justice O’Connor by Samuel Alito in 2006 moved the Court from a period of great deference to campaign-finance laws to a period of great skepticism, shifting from a 5-4 majority in favor of regulation to a 5-4 majority against it.